Licence Appeal Tribunal File Number: 23-006891/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Adam Mansour
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Yong
For the Applicant:
Mary-Anne Strong, Counsel
For the Respondent:
Nicholas Voight, Counsel
Geoffrey Yu, Counsel
Court Reporters:
Jo Velimirovic
Prashanth Thambipillai
Heard by videoconference:
August 6, 7, 8, 9, 12 and 13, 2024
OVERVIEW
1Adam Mansour (“the applicant”) was involved in an incident on December 24, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Belair (“the respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the beginning of the hearing, the parties advised that they have mutually resolved issues 2, 3 and 4 as listed in the Case Conference Report and Order dated February 14, 2024 (“CCRO”).
ISSUES
3Has the applicant sustained a catastrophic impairment (“CAT”) as defined by the Schedule under Criteria 7 or 8?
4Is the applicant entitled to costs pursuant to Rule 19?
RESULT
5The applicant sustained a catastrophic impairment as a result of the accident as defined by the Schedule.
6The applicant is not entitled to costs.
PROCEDURAL ISSUES
The Insurer’s Examination CAT reports of Dr. Howard Seiden and Dr. Nagib Yahya Ramadan Yahmad are allowed as evidence
7I find it appropriate to admit the Insurer’s Examination (“IE”) catastrophic executive summary report of Dr. Howard Seiden, MD, and the catastrophic neurological report of Dr. Nagib Yahya Ramadan Yahmad, neurologist, into evidence.
8At the beginning of the hearing, the respondent informed that it will not be calling Dr. Seiden and Dr. Yahmad to testify at the hearing because they were unavailable to appear as witnesses.
9The applicant objected and submitted that he had not been informed of the circumstances until two business days before the hearing, despite the respondent had listed the two doctors in its final witnesses list. He also submits that it is procedurally unfair and has lost his opportunity to obtain his own summons and the right to cross-examine these two doctors on their reports.
10I found that the applicant’s inability to cross-examine the witnesses would not be procedurally unfair as there would be no direct examination of these witnesses.
11In my view, it was procedurally fair to allow the reports of Dr. Seiden and Dr. Yahmad to be relied upon by the respondent because they are presumptively relevant (i.e. the reports are CAT reports relating to Criteria 7 and 8) and because both parties would have opportunities to speak to this evidence, as well as the weight afforded to these reports in their closing submissions. Notwithstanding the above, I note that the parties did not provide submissions or addressed these reports in their respective closing submissions.
Dr. Jamsheed A. Desai’s report dated April 3, 2018, is allowed as evidence
12I allowed Dr. Desai’s IE Neurology Assessment report dated April 3, 2018, into evidence.
13On the last day of the hearing, the respondent objected to Dr. Desai’s IE report being entered into evidence because the assessment was based on the determination of another medical benefit (i.e. income replacement benefit) which was not an issue in dispute in this hearing.
14The applicant submitted that the respondent did not raise an objection at the time when the report was entered into evidence, and it was too late to raise the same on the last day of the hearing.
15I agree with the applicant, that the respondent did not raise any objections when the report was being entered into evidence (i.e. around day 3 of the hearing) during one of the witnesses’ testimony. I find that raising this issue on the last day of hearing is inappropriate as the evidence had already been heard by the Tribunal. Further, the respondent’s late objection would prejudice the applicant as he would not have the opportunity to make their case well. For example, if the objection was early, the applicant could have pivoted to adjust their examination of other witnesses.
Applicant’s request to add costs to the issues in dispute is granted
16Pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules (“LAT Rules”), the parties are permitted to make a request to the Tribunal for costs. As the applicant submitted that he intends intend to seek costs, I allowed costs to be added as an issue in dispute.
Applicant’s request to draw adverse inference on alleged spoilage of evidence of Dr. Kanagaratnam’s first draft report is denied
17I declined to draw an adverse inference on the alleged spoilage of evidence, and allowed the parties to provide their submissions as to the weight that should be afforded to Dr. Kanagaratnam’s report before the conclusion of the hearing.
18During Dr. Kanagaratnam’s testimony on the fourth day of the hearing, she alluded that she may have had a different Whole Person Impairment (“WPI”) rating under Criteria 7 in her first draft report, which was not the first draft report contained within the applicant counsel’s brief. She did not recall the percentage or if it had been amended after subsequent revisions of her report.
19The applicant submitted that he had never been served any other draft reports with a different WPI rating authored by Dr. Kanagaratnam and submitted that the respondent breached of the production orders pursuant to the Case Conference Report and Order (“CCRO”) and alleged spoilage of evidence (i.e. destruction of the first draft report by Dr. Kanagaratnam).
20The respondent submitted that it was unaware of any draft reports, other than those that had been provided by Seiden Health and exchanged between the parties pursuant to the CCRO.
21As we were already on day 4 of the hearing, I found that it would not be practical to order further productions from the respondent to investigate, obtain and exchange the alleged first draft report. Further, I was not persuaded that Dr. Kanagaratnam was certain that another draft report was in existence. Lastly, Dr. Kanagaratnam’s final report, in the parties’ joint brief, was entered into evidence without any objections from the applicant and I find that she would have reviewed and approved the final WPI ratings before finalizing her report.
22For the above reasons, I declined to draw any adverse inference on the respondent for any alleged missing draft reports. Although I allowed the parties to provide submissions on the weight I should assign to Dr. Kanagaratnam’s report before the conclusion of the hearing, the parties did not provide submission in this regard.
ANALYSIS
The applicant has sustained a catastrophic impairment as a result of the accident
23I find that the applicant is catastrophically impaired (“CAT”) as defined in the Schedule.
24The applicant seeks this determination under two sections of the Schedule, section 3.1(1)7 (“Criterion 7”) and section 3.1(1)8 (“Criterion 8”). Under Criterion 7, the applicant must prove that, as a result of the accident, he has a combination of physical and psychological impairment ratings that result in a whole person impairment (WPI) of 55% or more when rated in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment (“Guides”), 6^th^ Edition. Otherwise, under Criterion 8 of the 4^th^ edition of the Guides, the applicant must prove that he suffers from marked impairment (“Class 4”) in at least three of the four domains, or at least one extreme impairment (“Class 5”), due to a mental or behavioural disorder.
25The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, as established in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30. I find that the applicant does meet the test as set out in the Schedule based on the cumulative evidence referred to at this hearing.
The applicant did not sustain a CAT impairment under Criteria 7
26I was not persuaded that the applicant sustained a CAT impairment under Criteria 7.
27The applicant submits that I should accept the findings of Dr. Warriner’s assessment reports and ratings because she was the only assessor who conducted a thorough and meticulous examination and assessments of the applicant. She administered multiple psychometric tests with the applicant and was able to obtain testing results, unlike Dr. Kanagaratnam, who was only able to provide provisional diagnosis and was unable to complete any psychometric testing.
28The applicant relies on the findings of Dr. Sequeira, physiatrist, who provided a 38% WPI rating under physical impairments and Dr. Warriner, neuropsychologist, who provided a 30% WPI rating under “Mental and Behavioural Disorders”. The 38% WPI rating combined with a 30% WPI rating amounts to a total combined 57% WPI rating, satisfying criteria 7.
29The respondent argued that the evidence of Dr. Warriner should be given little to no weight because her opinions and findings in her report were based predominantly on the subjective reporting by the applicant and the applicant’s mother. It also submitted that Dr. Warriner did not refer to any assessments conducted by an occupational therapist in support of her findings. It relies on the reports and testimonies of Dr. Kanagaratnam, psychologist, and Dr. Shariff Dessouki, physiatrist.
30The applicant was assessed by a team of s. 25 assessors and s. 44 assessors. The differences of the CAT whole personal impairment (“WPI”) ratings are summarised in the table below:
| Impairment | Applicant WPI (%) | Respondent WPI (%) |
|---|---|---|
| Dr. Sequeira | Dr. Dessouki | |
| Mental Status Impairment Concussion/Cognitive Impairments |
14 | |
| Cervicothoracic Spine Right neck and shoulder pain of musculoligamentous etiology (rotator cuff strain) |
5 | |
| Thoracolumbar spine Mechanical low back pain |
5 | |
| Lumbosacral Spine | ||
| Medication | 3 | |
| Sleep Impairment | 9 | |
| Dizziness | ||
| Sexual Impairment | ||
| Headaches | 5 | |
| Sub-total | 38 | 0% |
| Dr. Warriner | Dr. Kanagaratnam | |
| Mental & Behavioural | BPRS 40% GAF 20% PIRS 30% MEAN 30% |
BPRS 15% GAF 10% PIRS 10% MEAN 10% |
| COMBINED TOTALS | 57% | 10% |
Mental Status Impairment – 14%
31I accept, on the balance of probabilities, the applicant’s mental status rating of 14%. I am persuaded by Dr. Sequeira’s evidence that “it was exceedingly difficult to get questions answered from [the applicant]. There were long pauses” during his assessment. I find Dr. Sequeira followed the Guides which required a determination of whether the applicant had aphasia prior to providing a rating under this category or to proceed with further tests. Dr. Sequeira also found that the applicant was suffering from emotional distress, mood swings, persistent headaches which medications provided no relief, that affected his daily activities. He recommended the applicant to see another specialist for a further assessment for an anger management program. Dr. Sequeira testified that he found the applicant to have satisfied Category 2 of the Mental Status Impairments Table 2 in the Guides which is an “impairment [that] requires direction and supervision of daily living activities”, but he provided a conservative rating or concession due to the applicant’s pre-existing psychological condition, which he ultimately provided the highest rating in the Category 1 of 14% WPI. This is consistent with the testimony provided by Carol Mansour, the applicant’s mother (hereafter “Mrs. Mansour”), who testified that she would consistently need to give the applicant directions, instructions and intermittently supervise the applicant when she assigned the applicant with certain household tasks.
Cervicothoracic Spine – 5%
32I do not accept, on the balance of probabilities, the applicant’s cervicothoracic spine impairment rating. Dr. Sequeira provided a 5% impairment rating as the applicant continue to have pain complaints in his right neck and right shoulder. Dr. Sequeira also noted that although pain is a subjective element, an assessment of this area does not require objective findings.
33The respondent relies on the IE reports by Dr. Shariff Dessouki and Dr. Nagib Yahya Ramadam Yahmad. Dr. Dessouki, in his report dated March 25, 2022, diagnosed the applicant with musculoligamentous injuries of the cervical, thoracic and lumbar spine; and sprain and strain injuries of the applicant’s right shoulder, hip and knee. In his report dated March 25, 2022, Dr. Yahmad, neurologist, also examined the applicant and found that “from a strict physical neurological perspective, [there is 0% WPI impairment]”.
34The Guides provides a chart with a description and DRE impairment category for cervicothoracic spine impairment (Table 73). Specifically, DRE I impairment category is defined as complaints or symptoms, which amounts to a 0% WPI. DRE II category is defined as minor impairment which consists of clinical signs of neck injury being present without radiculopathy or loss of motion segment integrity, amounts to 5% WPI.
35As Dr. Sequeira, Dr. Dessouki and Dr. Yahmad’s reports documented the applicant’s complaint of pain in his right neck and right shoulder with a functional range of motion, I find that the applicant’s complaints fall within the DRE I impairment category and hence a 0% WPI rating.
Thoracolumbar Spine – 5%
36I do not accept, on the balance of probabilities, the applicant’s thoracolumbar spine rating.
37The applicant submits that he reported lower back pain to his treating doctors and continues to experience the same pain to date. The applicant’s complaint of lower back pain is consistently reported to Dr. Sequeira, Dr. Yahmad and Dr. Dessouki. However, these doctors reported that the applicant has normal range of motion in his lower back. Of note, Dr. Sequeira reported “Lumbar ROM grossly within normal limits” and the applicant’s hip and lower extremity are within normal limits.
38I was not pointed to medical evidence of any thoracolumbar injuries without radiculopathy or loss of motion segment integrity or structural inclusions as defined by the 6^th^ edition of the Guides.
39Hence, I am not persuaded by Dr. Sequeira’s provision of a 5% WPI rating for the applicant’s thoracolumbar spine because he did not justify this rating despite finding no abnormalities or reduced ranges of motion to the applicant’s lower back.
Medication – 3%
40I accept, on the balance of probabilities, the applicant’s medication rating of 3%. Dr. Sequeira provided a 3% rating for medication and testified that he prescribed injections and several medications which provided little to no relief to the applicant’s persistent headaches and pain complaints resulting from the accident-related injuries. The 6^th^ edition of the Guides provide this increased impairment percentage to account for a patient not regaining their previous status of normal good health. The applicant testified that he continued to experience daily headaches and that his medications did not provide much relief to his pain symptoms. The Guides consider situations where medication is declined and provide the view that this decision should neither decrease nor increase the estimated percentage of the patient’s impairment.
Sleep Impairment – 9%
41I do not accept, on a balance of probabilities, the applicant’s sleep rating. Dr. Sequeira recommended the applicant undergo a sleep apnea or sleep study test during his assessment but provided little explanation to substantiate his rating and reasons for further tests to be done. Further, Dr. Sequeira did not offer further evidence on confirm whether the applicant completed a sleep apnea or sleep study test in his subsequent follow-up assessments. The applicant testified that his sleep “is awful”, has nightmares once or twice a week relating to the accident and “feels like I haven’t had a proper night sleep since the accident”. However, the applicant’s sleep impairment is not supported by contemporaneous medical records.
Headaches – 5%
42I do not accept, on a balance of probabilities, the applicant’s headache ratings. In Dr. Sequeira’s initial report dated March 19, 2021, he provided a “N/A” rating for the applicant’s headache complaints but opined that a consideration for headaches should be extended in the application of head and neck region spinal nerves impairment rating and acknowledged that 6^th^ edition of the Guides do not provide ratings for headaches. However, in his subsequent report dated October 26, 2022, Dr. Sequeira revised his rating for the applicant’s headaches to 5% WPI, and justified this rating by assigning an impairment rating of “3% each for right and left side” and opined that pain is subjective in nature and depends on the applicant’s activity, demands and other factors, therefore concluding with a combined rating of 5%.
43While I acknowledge that the applicant may be suffering from headaches since the subject accident and based on the initial medical records, as the 6^th^ edition of the Guides do not provide a rating for headaches, I do not find that this rating as appropriate under the Guides.
Mental and Behavioural Impairment – 30%
44I accept, on the balance of probabilities, the applicant’s mental and behavioural impairment rating of 30% for the following reasons.
45Although the respondent argues that no weight should be given to Dr. Warriner’s report as her findings were mainly based on the subjective reports of the applicant and his mother and Dr. Warriner did not review any occupational therapy assessments unlike Dr. Karangaratnam’s assessment report, I prefer Dr. Warriner’s ratings because she conducted two in-person assessments with the applicant in 2020 and 2022 and authored a total of four reports. During the in-person assessments, Dr. Warriner administered and completed 27 standardized tests, 10 questionnaires completed by the applicant and 3 questionnaires completed by either the applicant’s mother or sister. I find Dr. Warriner’s 2020 report to be very comprehensive and detailed. Further, as she saw the applicant in person on two separate assessments which were 2-years apart, I find that Dr. Warriner would be in a better position to provide a medical opinion on the applicant’s psychological condition (e.g. improvement or deterioration) compared with her initial assessment of the applicant.
46Also, I find that Dr. Warriner’s findings are consistent with the testimony of Mrs. Mansour’s observations and descriptions of the applicant post-accident physical and psychological condition. I give less weight to the scores provided by Dr. Kanagaratnam as she testified that she was unable to complete the testing and could only partially administer the psychometric tests and that her findings were only provisional. This is further consistent with Dr. Warriner’s review of Dr. Kanagaratnam’s report, stating that Dr. Kanagaratnam only partially administered questionnaires and that the results could not be used qualitatively.
47The respondent submitted that the applicant suffered from pre-existing psychological issues due to an incident occurred at birth which led to a learning disability and memory issues and therefore cannot attribute these issues to the subject accident. It relies on a Neurological Assessment Report dated May 10, 2012, by Dr. Ellen R. Vriezen, psychologist. I am not persuaded by Dr. Vriezen’s report as she assessed the applicant when he was 14 years old, and the report appears to be limited such that it was strictly evaluating the applicant’s potential needs at school and provided recommendations for the furtherance of his education and learning in the immediate proceeding years. Although Dr. Vriezen reported that he sustained an anoxic injury shortly after birth which affected his memory, she noted that the applicant’s working memory and academic results was still average at the time of the assessment. Although Dr. Vriezen diagnosed the applicant with a Specific Learning Disability, she did not opine that the applicant had other mental or cognitive issues that affected his physical and psychological functioning.
48Further, Dr. Warriner testified that although the applicant had some learning disability, he was overall successful in high school and had aspirations to pursue further education and was working at the time of the accident. The applicant provided his high school academic results and acceptance letter from Fanshawe College notifying that he had been accepted into the Motive Power Technician Program. I find that prior to the accident, the applicant had minimal issues with his memory that would have materially impacted his education and further academic development or mental and cognitive functioning.
Whole Person Impairment - 42%
49Without the benefit of the ratings for cervicothoracic spine, thoracolumbar spine, headaches and sleep impairment ratings, the applicant’s total WPI is 42%, which is less than the 55% threshold required under the Schedule. This means that the applicant does not meet the definition of catastrophic impairment under Criteria 7.
50For the reasons above, I find that the applicant is not catastrophically impaired under Criterion 7.
The applicant sustained a CAT impairment under Criterion 8
51I find the applicant has sustained a catastrophic impairment under CAT Criterion 8.
What must the applicant prove?
52To prove catastrophic impairment under Criterion 8, the applicant must show he has a Class 4 (“marked”) impairment that significantly impedes all useful function in at least three areas of functioning due to a mental or behavioural disorder as a result of the accident. Alternately, the applicant must show one Class 5 (“extreme”) impairment that precludes (i.e., is not compatible with) useful function. The four areas of functioning are presented in the 4^th^ edition of the Guides as: (1) activities of daily living (“ADL”); (2) social functioning; (3) concentration, persistence, and pace (“CPP”) and (4) deterioration or decomposition in work or work like settings (“adaptation”).
53The 4^th^ edition of the Guides set out a three-stage process for evaluating catastrophic impairment based on a mental or behavioural disorder. The first stage is diagnosis of any mental disorders. In this case, the applicant submits he was diagnosed with a major depressive disorder, a somatic symptom disorder with predominant pain and a mild neurocognitive disorder due to multiple etiologies. The next stage involves identifying the impact of symptomology, which is addressed throughout this decision. The third stage is assessing the severity of limitations by determining levels of impairment for each of the four areas of functioning.
Submissions of the parties
54The applicant relies on Dr. Warriner’s report who found the applicant to have sustained Class 4 - “marked” impairment ratings in all four areas of ADL, social functioning, CPP, and adaptation, thereby satisfying CAT Criterion 8.
55The respondent argues that the applicant does not satisfy Criterion 8 and relies on Dr. Kanagaratnam’s IE psychological examination report dated March 25, 2022, who provided three “moderate” impairment ratings in ADL, social functioning and adaptation; and a “mild” impairment in CPP; and the IE occupational therapist, Mr. Demetrios Kostadopoulos’ IE In-Home Occupational Therapy Assessment report dated March 25, 2022.
Social functioning
56I find the applicant has sustained a marked impairment in social functioning as a result of a mental and behavioural disorder.
57According to the 4^th^ edition of the Guides, this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of restriction or combination of restrictions.
58During the hearing, the applicant testified that prior to the accident, he did not have any limitations with social functioning and enjoyed playing sports and socialising with his brother and his friends. He also enjoyed going to the movies weekly with his family or friends. Further, he had a good relationship with his family and friends pre-accident. Post-accident, the applicant testified that he no longer socialises or play sports with his brother or his friends. He testified that he no longer goes to the movies because the lighting of the screen and sitting for long periods of time causes pain and headaches.
59Mrs. Mansour testified that the relationship between the applicant and his sister has broken down post-accident and they no longer speak to each other. Joseph Mansour, the applicant’s brother, also testified that whenever the applicant visits his home, the applicant would sit on the couch and does not socialise like he would prior to the accident.
60Dr. Warriner opined that the applicant has a marked impairment in social functioning. In her report, Dr. Warriner notes that the applicant has become “socially isolated, low frustration tolerance and not initiating to call people to do things”. The applicant is not involved in socialising with his brother and friends, and he experiences tension and frustration. He is no longer engaged in family events and often feeling overwhelmed.
61Dr. Kanagaratnam determined that the applicant has a moderate impairment in social functioning which the 4^th^ edition of the Guides define as impairment levels which are “compatible with some, but not all, useful functioning”. She testified that although the applicant’s experiences difficulties with controlling his emotions due to pain and frustration and ability to interact with people has been affected post-accident, she opined that the applicant is still functional and hence is moderately impaired.
62I prefer Dr. Warriner’s rating over Dr. Kanagaratnam’s rating because it is more consistent with the applicant’s social difficulties following the accident as outlined below.
63I find the applicant has a marked impairment in social functioning for the following reasons:
i. The parties did not dispute the fact that, other than the returning to work briefly for a day sometime immediately post-accident, the applicant has not returned to his previous employment or engaged in any employment activities since the day of the accident
ii. He no longer socialises with his siblings and friends as he used to pre-accident. It appears that he would communicate with Mrs. Mansour, his primary care-taker;
iii. The testimonies of the applicant, Mrs. Mansour and Joseph Mansour regarding to the applicant’s relationships between the siblings and friends are consistent with the reports to the assessors. As noted above, the applicant no longer communicates with his sister because the relationship has broken down post-accident, he no longer socialises with his friends, and he no longer enjoys socialising with his family such as movie nights. Mrs. Mansour also testified that the applicant is unable to control his emotions post-accident;
iv. Several assessors such as Dr. Sequeira, Dr. Kanagaratnam and Dr. Warriner have noted in their reports that they had trouble obtaining responses to questions with the applicant during their assessments. I find that this is persuasive evidence that the applicant has difficulties with communicating with his medical physicians, family members, peers and social circle to the level that significantly impedes useful functioning whereby the applicant would prefer and resort to staying at home or in his bedroom; and
v. I was further persuaded by Mrs. Mansour’s testimony that the applicant’s reaction to his surroundings and events is unpredictable (i.e. he may become aggressive with strangers). This appears to be consistent with Dr. Kanagaratnam’s evidence where she described that, during the beginning of her assessment, the applicant abruptly exited her office without prior notice or explanation and that it was sudden.
64For the above reasons, I find that the applicant has a marked impairment in social functioning.
Activities of daily living (“ADL”)
65I find that the applicant has sustained a marked impairment in ADL as a result of a mental and behavioural disorder.
66According to the 4^th^ edition of the Guides, this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. ADL includes activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder rather than to such factors as lack of money or lack of transportation. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
67The applicant submits that since the accident, he has been unable “to do anything” and requires cuing and reminders by his family members, in particular by Mrs. Mansour. She testified that the relationship between the applicant and his sister has broken down post-accident and they no longer speak to each other. the applicant was like any other “normal kid” and would help with chores around the home prior to the accident (e.g. mowing the lawn, take out garbage, run errands at the supermarket). Post-accident, the applicant is irritable and has lost interest in any leisure activities and would stay in his room most of the time.
68Mrs. Mansour testified that she is the primary care-taker for the applicant at home and would be responsible for waking him up in the morning, remind him to take his medications, and assigning him house chores and other ADL. She also testified that sometimes the applicant would forget and would leave the tasks unfinished (i.e. dishwasher would be unloaded and loaded with a mix of clean and dirty dishes, laundry left half incomplete). The applicant would constantly need to be reminded of the assigned task in order to stay focused. Both the testimonies of Mrs. Mansour and the applicant suggests that the applicant is easily distracted and cannot look after himself on his own unless he is prompted, reminded or cued.
69Dr. Kanagaratnam determined that the applicant has a moderate impairment in ADL and opined that despite the inability to return to work and not being motivated, he is still able to take care of himself. I disagree with Dr. Kanagaratnam’s impairment rating because the evidence and reasons outlined below are more consistent that the applicant experiences difficulties in carrying out ADL.
70I find the applicant has a marked impairment in ADL for the following reasons:
i. Based on Dr. Warriner’s report, the testimonies of the applicant and Mrs. Mansour regarding the applicant’s post-accident employment, I am persuaded by the evidence that the applicant attempted to return to for a day or part of the day sometime immediately post-accident, I find that the applicant has been unable to return to his previous employment or engaged in any employment activities post-accident due to his post-accident physical and psychological impairments;
ii. Dr. Warriner and Mr. Kostadopoulos gave evidence that they both found the applicant would get easily distracted and required prompting, given instructions, orientation. This is consistent with Mrs. Mansour’s testimony. I find that the evidence provided corroborate together and shows that the applicant’s developed reduced tolerances post-accident and that he would likely be stressed and overwhelmed if he is required to deal with any conflict between family members or in an employment settling between co-workers or customers. Further, Dr. Warriner also opined that the applicant “may find it hard to keep his cool and manage his emotional reactivity, and problem-solve and make decisions efficiently when faced with challenges or new situations.”
iii. Although Mr. Kostadopoulos reported that the applicant was able to cook a simple meal (i.e. cook a can of soup on the stove), I find that his report lacked details about process and challenges experienced by the applicant while he completed this activity. For example, Mrs. Mansour testified that she was aware not to interfere with the assessment, but had to provide cues to the applicant, when he asked about where to find the cooking utensils (e.g. pot and spoon) because the applicant did not know where they were located in the kitchen. Also, she noted that Mr. Kostadopoulos omitted to detail that the applicant had left the pot of soup on the stove for quite some time resulting in burnt soup and was inedible. She testified that after this assessment, she had to discard the soup and the pot entirely as it was burnt, and the pot was no longer usable. These details were not contained in Mr. Kostadopoulos’ report and I find them to be critical in assessing whether or not the applicant was able to successfully complete a simple cooking task. Based on the conflicting testimonies of Mr. Kostadopoulos and Mrs. Mansour, I find that Mrs. Mansour’s testimony to be more credible and she was able to provide a more detailed account of this portion of the assessment;
iv. I am persuaded by the overall evidence that, post-accident, the applicant no longer socialises with his siblings and friends, requires cuing to wake up in the morning, be reminded about personal hygiene and when to take his medications. On occasions, he would attempt to help with house chores, but it would often be left unfinished due to being distracted or become overwhelmed by physical pain or headaches.
71For the above reasons, I accept that the applicant has a marked impairment in ADL.
Adaptation
72I find that the applicant has sustained a marked impairment in adaptation as a result of a mental and behavioural disorder.
73According to the 4^th^ edition of the Guides, this area of functioning refers to an individual’s capacity to respond appropriately to changes in the work setting; to be aware of normal hazards and take appropriate precautions; to use public transportation and travel to and within unfamiliar places; to set realistic goals; and to make plans independently of others. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction.
74Dr. Warriner opined that the applicant meets Class 4 or marked impairment which is defined as impairment levels significantly impede useful functioning in adaptation. Based on her observations in several assessments, she opined that the applicant’s ability to sustain employment, ability to handle stress without being overwhelmed, handling directions and managing stress, and reviewing the applicant’s medical records meets a marked impairment in this domain.
75Dr. Kanagaratnam opined that the applicant is experiencing moderate difficulties in adaptation (i.e. the applicant was irritable and agitated during the assessment, took breaks albeit abrupt) and would have difficulty dealing with stressful situations and would not be able to sustain in a job. She gave evidence that she felt the applicant seemed to experience issues when he is agitated and due to limitations post-accident.
76Based on the applicant’s responses and information provided by Mrs. Mansour during the assessment, Dr. Kanagaratnam noted that the applicant has low stress tolerance and difficulty with coping. Dr. Kanagaratnam also noted that during the assessment the applicant was only able to respond to some of the questions when she read out some of the test items from the self-report scales and required “a couple of breaks during the first 5 minutes of the interview and the first 10 minutes after he started the psychometric testing. There is a possibility that he requested the breaks due to feeling overwhelmed by the demands of the assessment”. As mentioned earlier, Dr. Kanagaratnam was unable to complete the psychometric tests with the applicant due to having the applicant’s difficulties understanding the test items.
77In my view of Dr. Kanagaratnam’s analysis of the applicant’s post-accident psychological condition, in the adaptation area of Criterion 8, her acknowledgement that the applicant’s experiences challenges and difficulties when administering the tests, collateral information obtained from Mrs. Mansour and her review of Mr. Kostadopoulos’ In-Home Assessment IE report, appears to be more in line with a Class 4 or “marked impairment” rating for adaptation.
78In viewing the evidence of Dr. Warriner, Dr. Kanagaratnam, Mr. Kostadopoulos and the testimonies of the applicant and Mrs. Mansour, in aggregate, I find that the applicant is heavily reliant and dependent on his mother, Mrs. Mansour, for assistance and guidance in initiating or carrying out activities during the day, such as running errands at the supermarket for the family. As mentioned earlier, the applicant is easily distracted and requires reorientation to focus on completing his tasks. This is consistent with the evidence from Mr. Kostadopoulos where he testified that he had to reorient the applicant to focus on the shopping list during the assessment at the local supermarket, and Mrs. Mansour’s evidence where she testified that she had to provide the applicant with directions over the telephone, during a separate occasion, for where to find groceries items at the supermarket. I find that these examples are persuasive evidence that the applicant is unable to handle stressful situations and independently complete tasks without supervision.
79For the above reasons, I find that the applicant has a marked impairment in the area of adaptation which significantly impedes useful functioning.
80As I find that the applicant has a marked impairment in three of the four domains, I find that the applicant meets the threshold for a CAT designation under Criterion 8.
Request for costs: The applicant is not entitled to costs under Rule 19
81I find that the applicant is not entitled to costs.
82Pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
83The applicant submits that due the respondent’s breach of the production orders in the CCRO, by failing to provide the complete file (i.e. including all the draft reports) from the IE assessment facilities, which has caused prejudice against his case and preparation with its materials for cross examination of Dr. Kanagaratnam. He seeks costs of $1,000.00 per day for six days, totalling $6,000.00.
84The respondent submits that it has not breached the production orders in the CCRO and was not aware of the missing draft reports until the cross-examination of the IE assessors. It submits that it provided the complete files as provided by the IE assessment facilities and with regard to Dr. Seiden and Dr. Yahmad, it out was of its control that the two doctors were not available to testify at the hearing.
85I find that the draft reports of Dr. Kanagaratnam are not critical in the determination of the issues in dispute in this case. As I have reviewed the final report, which was entered into evidence, the final report would have been reviewed, finalised and approved by Dr. Kanagaratnam prior to its release. Hence, I do not find that the alleged missing draft reports would have been fatal to the applicant’s case. Further, Dr. Seiden and Dr. Yahmad’s reports have been entered into evidence without any objections by the applicant.
ORDER
86The applicant sustained a catastrophic impairment as a result of the accident as defined by the Schedule.
87The applicant is not entitled to costs pursuant to Rule 19.1.
Released: January 23, 2025
Lisa Yong
Adjudicator